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Full text of "Fuller v. Candur Plastics Limited, Board of Inquiry, May 1981 BOI 130"

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R.S.O. 1970, CHAPTER 318, AS AMENDED, 

AND IN THE MATTER OF the complaint of Mrs. Sylvia 
Fuller against Candur Plastics Limited 


Robert W. Kerr 




MAY 2 8 1981; 



Ms. Janet Minor ) 
Ms. Leith Hunter ) 

Counsel for. the Ontario Human 
Rights Commission and the 
Complainant, Mrs. Sylvia Fuller 

Robert Falby ) 
Allan Kling ) 
( student-at-law) 

Counsel for the Respondent, 
Candur Plastics Limited 

Dates of Hearing ) 

April 28 and 29, 1981 

Place of Hearing ) 

10 Wellesley Street East, 
Toronto, Ontario 


The complainant, Mrs. Sylvia Fuller, is a black person of Jamaican 
origin. She was employed by the respondent, Candur Plastics Limited, from 
August 14, 1978 to March 28, 1979. Following the end of her shift on the 
latter date, she was dismissed. The complaint alleges that this dismissal 
was because of the race, colour, nationality, ancestry and/or place of 
origin, of the complainant and therefore constitutes a violation of section 
4 (1) (b) , (c) and (g) of the Ontario Human Rights Code, R.S.O. 1970, c. 318, 
as amended. 

The respondent manufactures a variety of molded plastic containers. 
Each type of container is mass-produced by an automated molding machine. 
The finished containers, however, are manually inspected and packed into 
boxes. The respondent operates three shifts a day, Monday to Friday. Each 
shift is under the supervision of a foreman. There is also a person known 
as a forelady on each shift who has certain supervisory responsibilities 
on the shop floor, although this position appears rather more that of a 
lead-hand, than that of a true member of management. In addition to the 
forelady, there are a variable number of employees (approximately 8 to 12) 
on the shop floor, each of whom is assigned on a rotation-basis by the forelady 
to inspect and pack the output of a molding machine. 

The complainant was employed on the afternoon shift (4:00 p.m. to 12:00 
midnight) to inspect and pack containers. The foreman on this shift was 
Egon Ledermann. On March 26, 1979, the position of forelady was assumed by 
Christine Thuilliard. Dulcie Atkins, another black person of Jamaican origin 
and a personal friend of the complainant, had expected to receive this promotion 
since she had seniority among the workers on the shift and was recommended by 



the previous forelady. As a result, certain ill-feelings were generated. 
Although the exact course of events is in dispute, it does appear that 
sometime on March 27 and/or 28 one or more incidents of actual or threatened 
physical conflict occurred between the complainant and Mrs. Thuilliard as a 
by-product of this ill-will. Whatever such incidents may have involved, at 
about the mid-point of the shift on either March 27 or March 28, the complainant 
reported to Mr. Ledermann that Mrs. Thuilliard had slapped her on the face. 

Because of the complainant's emotional state at the time and her rather 
strong Jamaican accent, she was unable to make Mr. Ledermann understand her 
grievance. In an effort, as she says, to demonstrate, the complainant slapped 
Mr. Ledermann on the face. Mr. Ledermann subsequently obtained clarification 
of the complainant's grievance through Mrs. Atkins. The complainant returned 
to work. At the end of her shift on March 28, Mr. Ledermann advised her that 
she was fired. She appears not to have been given reasons for her dismissal. 

At the hearing the reason for dismissal offered by the respondent's 
witnesses was the fact that the complainant had slapped Mr. Ledermann, her 
supervisor. It was denied that her race, colour, nationality, ancestry, or 
place of origin had been a factor. 

At the outset, it should be made clear that under section 4 of the Human 
Rights Code it is sufficient to constitute an offence if a prohibited factor 
is one of the grounds of the employer's decision. It is not even necessary 
that the prohibited factor be a major element in the decision, as long as it 
an operative element. I am buttressed in this conclusion by the decision in 

v. Bushnell Communications Ltd. (1973) ' f 1 O.R.(2d) 442 (H.C.j, affirmed 
(1974), 4 O.R. (2d) 288 (C.A.), dealing with comparable use of the words 
"because of" in the Canada Labour Code, R.S.C. 1970, c. L-l , s. 110 (3). 


In determining the operative elements in a decision, the first step 
is to identify the decision-maker. In this case, it is clear that, although 
the owners of the respondent, Dieter Sander and Uwe Meyer, made hiring 
decisions at the time relevant to this case, all subsequent decisions on 
employment status, such as lay-off, recall and dismissal, were left in the 

hands of the foreman of the shift concerned. Thus, it is Mr. Ledexmann's _7 

motivation that must be focused upon in this case. 

Once the decision-maker is identified, a common problem in such cases is 
that the real reasons for the decision are known only to that person. As 
was stated in Kennedy v. Mohawk College (Ontario Board of Inquiry, Borins, 
1973) at 4-5: 

Discrimination on the grounds of race or colour are frequently 
practised in a very subtle manner. Overt discrimination on these 
grounds is not present in every discriminatory situation or occurence. 
In a case where direct evidence of discrimination is absent, it 
becomes necessary for the Board to infer discrimination from the 
conduct of the individual or individuals whose conduct is in issue. 
This is not always an easy task to carry out. The conduct .alleged 
to be discriminatory must be carefully analysed and scrutinized in 
the context of the situation in which it arises. In my view, such 
conduct to be found discriminatory must be consistent with the allegation 
of discrimination and inconsistent with any other rational explanation. 
This, of course, places an onus on the person or persons whose conduct 
is complained of as discriminatory to explain the nature and purpose 
of such conduct. It should also be added that the Board must view the 
conduct complained of in an objective manner and not from the subjective 


viewpoint of the person alleging discrimination whose interpretation 
of the impugned conduct may well be distorted because of innate 
personality characteristics, such as a high degree of sensitivity 
or def ensiveness . 

Some overt evidence of discrimination was tendered in this case in the 
complainant's testimony that Mrs. Thuilliard had called her a "monkey" with 
specific reference to the event of dismissal, and had acknowledged this to be 
a reference to the complainant's colour. Mrs. Thuilliard denied this, but if 
the complainant is believed the inference is possible that Mrs. Thuilliard 
influenced the decision to dismiss and her influence was based on the complainant's 
colour. While this possibility does exist, there was no evidence before me 
that Mrs. Thuilliard influenced the decision to dismiss the complainant. As 
already noted, the nature of her position seemed to be more in the nature of 
a lead-hand, notwithstanding the designation of forelady given to her. Thus, 
even if Mrs. Thuilliard herself was influenced by racial bias, this did not 
make it an operative element in the dismissal. 

It is also possible that the epithet allegedly used by Mrs. Thuilliard 

created a discriminatory condition of employment which violated the Human Rights 

Code independently of the decision to dismiss. However, on the evidence, before 

■ • _ 

me, at most this was only shown to be "an isolated offensive outburst" by 
another employee. Such an occurrence does not put the employer in violation of 
the Code even where the other employee is in a supervisory position: Simms v. 
Ford of Canada (Ontario Board of Inquiry, Kreever, 1970) at 18. 

This leaves me with the task of determining whether there was discrimination 
from a careful and objective analysis and scrutiny of the conduct which occurred 
in its context, as stated in the Kennedy case. 

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In accord with obligation upon the Board of Inquiry to examine the 
circumstances objectively, it is often useful to compare the treatment of 
a person who complains of unlawful discrimination with the treatment of other 
employees in similar circumstances where an obvious variable is the factor 
which is alleged to be the basis of discrimination. This approach is not 
very helpful in this case, however, since both the complainant's conduct which 
the respondent claims to be the real basis for its action and the respondent's 
action seem virtually unprecedented. 

The complainant admits that she did slap her supervisor, albeit lightly 
and at what she interpreted to be his invitation to do so . It is also clear 
that the complainant and Mr. Ledermann were having difficulty communicating 
at the time so that a misunderstanding between them over whether such an 
invitation was given was not surprising. It is a plausible explanation that, 
because of this misunderstanding, the complainant was dismissed for doing 
something she thought she was privileged to do. This might be unfair, but on 
such an interpretation there would be no violation of the Human Rights Code. 

Since the striking of a supervisor by an employee was, so far as the 
evidence went, unprecented for the respondent, no comparison can be made as 
to whether other incidents were dealt with in the same way. 

Similarly, the respondent appears to have had no prior experience with 
the dismissal of employees. One incident of subsequent dismissal of Mrs. Atkins 
was referred to in the evidence, but the circumstances seem so different that 
any comparison would be extremely tenuous. Since Mrs. Atkins is also a black 
person of Jamaican origin, it might be inferred that this reinforces the 
allegation of unlawful discrimination. However, the circumstances were not 
extensively explored in the evidence and I am not prepared to make such an 



inference on the evidence before me. Without other incidents of dismissal, 
a comparison cannot be made as to whether the criteria used by the respondent 
in such cases support its contention that the complainant's dismissal was 
fully explicable without reference to unlawful considerations. The very lack 
of other dismissals might suggest that no such criteria existed and in itself 
produce an inferrence of unlawful discrimination. In light of the complainant's 
own unprecedented action, however, I conclude that the unprecedented nature 
of the respondent's dismissal of her is not sufficient to support a finding of 
discrimination . 

The closest similar event that was related in the evidence was an incident 
of fighting between Mrs. Atkins and Laurie LaMarsh, a co-worker who quit 
shortly before the complainant was dismissed. Both Mrs. Atkins and Ms. LaMarsh 
were suspended for what appears initially to have been a three-day period, 
but they were brought back after one-day when they undertook not to repeat the 
incident. The treatment of the two participants on that occasion appears non- 
discriminatory . 

This incident has enough in common with that involving the complainant 
that it provides some basis for comparison. However, this comparison does not 
lead very far because characteristics of the parties which are prohibited as 
grounds for discrimination were a constant factor, rather than a variable. 
Both incidents involved a black person of Jamaican origin in conflict with a 
white person of Canadian origin. The complainant was treated differently from 
everyone else involved in the two incidents. Since prohibited factors were 
constant between the two incidents, the logical inference from a comparison 
would be that some factor other than a prohibited one led to the difference 
in treatment. 



The major variable that presents itself is that the complainant came 
into conflict with supervisory personnel, both in the initiating incident with 
Mrs. Thuilliard and in the subsequent meeting with Mr. Ledermann . The early 
incident involved only two ordinary employees. To some extent, therefore, 
this comparison tends to support the respondent's explanation that it 

was a physical assault on a supervisor which singled the complainant out 

for dismissal. 

On the other hand, this comparison also underlines a sharp contrast 
in treatment between Mrs. Thuilliard and the complainant. At the time in 
question, the complainant had reported that Mrs. Thuilliard had slapped her. 
On the witness stand, Mrs. Thuilliard 's side of the story was that the 
complainant had grabbed her on the chin, although I have some doubts as to 
the credibility of this both because the testimony of Wesley McKenzie, the 
Commission's investigator, contained no reference to any such allegation in 
his interview with Mrs. Thuilliard and because a grabbing of the chin is 
physically awkward and thus a rather unlikely form of aggressive contact. 
In any event, viewed most favourably from the respondent's perspective, Mr. 
Ledermann was presented with conflicting versions of a conflict between the 
complainant and Mrs. Thuilliard. 

Mr. Ledermann testified that he investigated the matter by asking the 
other workers if they had seen what happened. None admitted to having seen 
anything. As a result, Mr. Ledermann was left with one employee's word against 
another. While the severity of the action taken to dismiss the complainant 
might be explained by her subsequent slapping of Mr. Ledermann himself, the 
total absence of any further action upon the complainant's allegation that 
she had been slapped by Mrs. Thuilliard called for some explanation. None was 



Since, as previously noted, Mrs. Thuilliard was more of a lead-hand 
than a true member of management, it is doubtful that her supervisory position 
justified treating the complainant's allegations against her as unimportant. 
The complainant testified that she suffered pain as a result of the slapping, 
and this was supported by the fact that she consulted a doctor. In the absence 
of a witness, therefore, Mr. Ledermann might at least have sought some medical 
or para-medical advice on whether the complainant's allegations could be 
corroborated. It appears he simply accepted Mrs. Thuilliard' s word and 
rejected that of the complainant, which was hardly even-handed. 

In the final analysis, the process of comparison resolves nothing. 
On the one hand, it supports the respondent's explanation because of the even- 
handedness of the "earlier treatment of Mrs. Atkins and Ms. LaMarsh. On the 
other hand, it raises an unexplained differential in the treatment of Mrs. 
Thuilliard at the time of the complainant's dismissal. 

This leaves the case to be resolved essentially on the basis of the 
credibility underlying the explanation of the complainant's dismissal which 
was offered by the respondent. 

If this explanation is credible on the whole of the evidence, there would 
not appear sufficient evidence that other unlawful factors also affected the 
complainant's dismissal. If this explanation is not credible, however, an 
inference of discrimination may arise. The dismissal would be "consistent with 
the allegation of discrimination and inconsistent with any other rational 
explanation", in the words of the Kennedy decision, since the one potentially 
rational explanation would have been found not credible. 

I would note that the appropriateness of the standard just quoted from 
the Kennedy case is questionable. It appears more consistent with the 
requirements of proof beyond a reasonable doubt, than with proof on the balance 




of probabilities which is the onus on the Commission under the Code. However, 
it is not necessary for me to resolve this question since the matter does 
resolve itself into the credibility of the only alternative rational explanation 
that was offered. I do not think it can be disputed that any such explanation 
must be not only rational, but also credible on the whole of the evidence. 

On the whole of the evidence, I do not find the explanation offered by 
the respondent to be credible. In the first place, it is evident that the 
reason for dismissal was never made known to the complainant. It can happen 
that an employer's mind is itself unclear as to the reasons for dismissal of 
an employee because the action is based on a cumulation of incidents of which 
no one is decisive. However, I find it hard to believe that, where a dismissal 
is based on a clear, discreet event, as this one was alleged to be, the decision- 
maker would not attempt to immediately justify the decision to the employee. 
The fact that the reason now alleged was not offered at the time strongly 
suggests that it was not perceived as the reason at the time. 

Secondly, while Mr. Ledermann was left with the discretion to decide 
what action to take with respect to the complainant, it is apparent that his 
superiors, Mr. Sander and Mr. U. Meyer, were aware of events immediately after- 
ward, and became even more involved a few weeks, later when contacted by the Ontario 
Human Rights Commission. It seems that they were under the impression at the 
time that the complainant had been dismissed for fighting with another employee, 
namely, Ms. LaMarsh, who had quit about the same time. Moreover, they continued 
to be under this impression until sometime after the Commission's investigation 
was underway. Again, it seems hard to believe that, if Mr. Ledermann had based 
his decision on the complainant's act of slapping him, he would have left his 
superiors under this impression. 


Mr. McKenzie testified that Mr. Ledermann, when interviewed by Mr. 
McKenzie, first named fighting as the reason for the complainant's dismissal. 
It was only toward the end of the interview that Mr. Ledermann raised the 
slapping incident. I have no reason to doubt the accuracy of Mr. McKenzie 's 
report of the interview since he relied heavily on notes that were taken at the 
time. This sequence in the interview further confirms that Mr. Ledermann did 
not perceive the slapping incident as the reason for dismissal. 

Finally, on the witness-stand, Mr. Ledermann went to some lengths, indeed 
lengths which were barely credible, to emphasize that the complainant did 
not do her job satisfactorily. This also suggests that the slapping incident 
was not the real reason for dismissal. While poor performance in itself would 
be a lawful reason for dismissal, Mr. U. Meyer testified that they did not fire 
people for being poor workers, but rather laid them off when work was short. 
Thus, if this were the real basis of the complainant's dismissal, there would 
be a strong case for inferring unlawful discrimination by comparison with 
similar cases. 

I find, therefore, that the slapping of Mr. Ledermann was not the real 
reason for the complainant's dismissal. This leaves, then, the question of 
whether on careful analysis and scrutiny I draw the conclusion that her race, 
colour, nationality, ancestry or place of origin was the real reason or a part 
of the real reason. 

I am not inclined to the view that such unlawful considerations formed the 
major basis of the decision. Rather I think that a combination of factors played 
a part. For one thing, I think, Mr. Ledermann was bothered by the difficulty 
he had in understanding the complainant. The complainant is highly emotional, 
and uses crying as a means of emotional release. This probably annoyed 
Mr. Ledermann. I am also inclined to believe he did not think highly of her 
work performance. 


In addition, I am satisfied that Mr. Ledermann was unhappy with the some- 
what lax way in which Mrs. Thuilliard's predecessor dealt with her co-workers 
and was pleased by the way in which Mrs. Thuilliard took command. Out of 
this, I think he was upset by the complainant's attitude towards Mrs. Thuilliard' 
promotion to forelady. I think he saw some risk that things might get out of 
hand and saw an opportunity to resolve a number of his frustrations and put 
a dampener on potential defiance by making an example out of the complainant 
through her dismissal. None of this in itself violated the Human Rights Code. 

However, I am also persuaded that, in dealing with the complainant, 
Mr. Ledermann picked upon her as an example because he did not hold her in 
proper regard as a person, and that her race, colour and place of origin were 
factors in his view of her. I think this is the only conclusion consistent 
with the abrupt and summary way in which he dismissed her. The complainant 
was, therefore, dismissed in part because of her race, colour and place of 
origin in violation of section 4 (1) (b) of the Ontario Human Rights Code. 

During the hearing a great deal was made of a conflict in evidence over 
the date on which the complainant slapped Mr. Ledermann. The complainant 
testified that it occurred on March 27, a full day before her dismissal. The 
respondent's witnesses were quite firm that it occurred on March 28, during the 
shift at the end of which the complainant was fired. I do not think that the 
resolution of this dispute is necessary for I find the explanation that the 
slapping of Mr. Ledermann was the reason for the complainant's dismissal is not 
credible, regardless of the date of this incident. 

The only other relevance of this issue goes to the credibility of the 
individual witnesses who testified to this item. Notwithstanding the importance 
of this incident to the whole matter, I do not think that a mistake such as 
this on a date provides a sufficient basis for determining the credibility of a 





witness. The human mind is just too prone to erroneous time associations, even 
after a relatively short period of time. If the respondent's witnesses, three 
of whom addressed the date, were mistaken, I would not on this basis alone 
conclude that they were otherwise unreliable. 

With respect to the complainant's testimony, it is quite possible that, 
even fairly soon after the events, she associated them in a shorter time 
frame than they actually involved. It is possible, for example, that the 
incident with Mrs. Thuilliard happened on March 27, but that the complainant's 
grievance to Mr. Ledermann during which she slapped him actually occurred 
the following day. Again, I do not think this would mean I should find her 
evidence generally unreliable . 

On the contrary, I am favourably impressed by the complainant's testimony. 
Because she does not read English, she was unable to read the complaint form and 
attest to the facts as stated therein for the record. This is a practice 
commonly followed in such hearings. The respondent's counsel objected to having 
the form read to her for this purpose because it would lead the witness rather 
extensively. Since there seemed no reason why the same evidence could not be 
introduced by means of simple question and answer, I allowed the objection. As 
a result, the complainant testified without the benefit of a reminder of what 
she had stated in her complaint. Her evidence did not differ in any significant 
way from what was recorded by the intake officer who received her complaint over 
two years earlier. This very much persuades me as to the reliability of her 
testimony as a whole. 

On the matter of remedy, counsel for the respondent indicated he would like 
to reserve the right to make further submissions as to remedy, particularly with 
respect to the amount of unemployment benefits received by the complainant, in 


the event the merits were found against the respondent. I suggested that it 
might be an appropriate case for me to give counsel an opportunity to settle 
the amount of the av/ard in accordance with such rulings I might make on the 
nature of the remedy, with leave to apply to me for a final determination 
in the event they were unable to settle the amount. On consideration, however, 
the amount of the award appears so simple to calculate that it seems preferable 
for me to settle the amount of the award with leave to apply for reconsideration 
in the event that counsel are of the opinion that I have erred. 

The complainant is entitled to loss of wages during the period from her 
dismissal until the time when her employment would otherwise have terminated, 
subject to mitigation. None of the respondent's witnesses offered any evidence 
of any development that would have terminated the complainant's employment, 
subsequently, had she not been dismissed on March 28. This leaves the evidence 
of the complainant who testified as to two relevant events- One was that she 
visited Jamaica in August, 1979, to look after her mother who was ill. At 
this time unemployment benefits which she received after dismissal were cut off. 
The second event was that she obtained a similar job on October 15, 1979 which 
would appear to have completely mitigated her losses. 

The complainant's visit to Jamaica would have constituted a quit if she 
had still been employed by the respondent at the time. In view of the high 
turnover and low skill requirements of the respondent's employees, I am satisfied 
that it is unlikely that the complainant would have been rehired on her return 
from Jamaica. Moreover, it is unlikely a case could have been made out that 
such a refusal to rehire was discriminatory. I am not as certain that the 
respondent would have gone to Jamaica if faced with the possible loss of her 
job, rather than a mere loss of unemployment benefits. However, on the balance 
of probabilities, I think it likely that she would have. Thus, I would award 


loss of wages for the period from March 29, 1979 through July 31, 1979 
inclusive. The exact dates of the complainant's trip to Jamaica were not 
established. The complainant testified that it occurred in August and I must 
therefore exclude that entire month in the absence of more specific evidence. 
The complainant testified that her wages were $3.75 an hour at the time of 
dismissal. However, in suggesting a calculation to me, counsel for the Commission 
used the figure of $3.50 an hour. Since the complainant's memory of such 
details was not too definite, I regard counsel's representation, presumably 
based on the Commission's investigation, as an admission that $3.50 is the 
appropriate rate, for a weekly pay of $140. The period in question consists 
of 18 weeks, less one day. Thus, the total loss of wages is $2492. 

Collateral benefits and deductions such as unemployment benefits and tax 
deductions are not relevant to the rights as between the parties, so I make 
no deduction for such items. It is possible, for example, that this award may 
give rise to a claim for overpayment from the Unemployment Insurance Commission 
which would upset any calculations taking unemployment benefits into account. 
In light of the irrelevance of such benefits, I see no prejudice to the 
respondent in my not granting counsel's request that I reserve decision for 
further submissions on the amount of such benefits. 

With respect to other questions of mitigation, I am satisfied that the 
complainant conducted an adequate search for alternative employement. No 
deduction for failure to mitigate is called for. 

In addition to loss of wages, counsel for the Commission requested 
compensation for humiliation to the complainant and an order directing the 
respondent to provide to the Commission an assurance of future compliance with 
the Code. 


No evidence was presented to me of any actual humiliation or other 
injury to feelings experienced by the complainant as a result of her dismissal. 
On the other hand, the lack of sensitivity with which she was treated at 
the time of dismissal must have caused her some anguish. I would award the 
amount of $100 as compensation for injured feelings. This is intended to 
be more than a nominal sum, but to reflect also the fact that no substantial 
injury was proved. At today's values, this is not much more than a nominal 
sum. However, in the light of the recent awards in Imberto v. Vic and Tony 
Coiffure (Ontario Board of Inquiry, McCamus, 1981) , and Bish v. Chez Moi Tavern 
(Ontario Board of Inquiry, Haynes, 1981) , both of which awarded $100 under 
this head, I do not think I should award a larger amount without substantial 
evidence of the complainant's actual suffering, as was present in the other 
recent such decision in Cousens v. Canadian Nurses Association (Ontario Board 
of Inquiry, Ratushny, 1981) . 

Finally, in light of the fact that the violation of the Code in this case 
arose out of a nearly complete discretion given to the foreman in personnel 
decisions after the initial hiring, and in light of evidence that the respondent's 
owners did not take the matter seriously until the Commission's investigation 
was well underway, I think this is an appropriate case to require that an 
assurance of future compliance be given. While the owners, Mr. Sander and 
Mr . U. Meyer, may be sufficiently impressed with the importance of the Code's 
requirements by this decision itself, the giving of an undertaking should help 
in ensuring that they will also impress this upon those to whom personnel 
responsibilities have been delegated. In furtherance of this, I would also 
direct that notice of this assurance be given to each employee with responsibility 
for personnel matters. 



For the reasons set out above, I order as follows: 

1. It is ordered that the respondent pay the sum of $2492 for loss of wages 
by the complainant and $100 for injured feelings of the complainant. 

2. It is ordered that the respondent forthwith send a letter of assurance 
to the Ontario Human Rights Commission, undertaking to comply with The 
Ontario Human Rights Code in the future, and give notice of this letter 
to each of its employees having responsibility for personnel matters. 

Counsel may apply for reconsideration of the calculation of loss of 
wages, upon notice to the other parties. 

DATED at Windsor this 26 day of May, 1981. 

Robert W. Kerr 
Board of Inquiry